April 2016

Planning and Environment Update (April 2016) - The Objectors Bill: Six Months In

The Planning and Environment Amendment (Recognising Objectors) Bill 2015 (Objectors Bill) came into operation on 12 October 2015. It amended the Planning and Environment Act 1987 (Act) by inserting Sections 60(1B) and 84B(2)(jb), which provide that a responsible authority and the Victorian Civil and Administrative Tribunal (Tribunal) respectively must have regard, where appropriate, to the number of objectors in considering whether the use or development may have a significant social effect.

The Act is ambiguous as to the circumstances in which it would be appropriate for a responsible authority or the Tribunal to exercise its discretion to take into account the number of objectors.

The second reading speech for the Objectors Bill and Planning Advisory Note 63 provide some guidance and indicate that whether it is appropriate for the number of objectors to be taken into account in a particular case will be influenced by:

what the objectors have said in their written objections;

whether the issues raised in the objections are relevant planning considerations and relate to the reasons why the proposal requires a permit; and

whether the issues raised in the objections point to a detrimental effect on the community which is supported by evidence.

However, the juxtaposition of the use of the word “must”, which implies a mandatory requirement, with the phrase “where appropriate”, which gives discretion to decision-makers, is peculiar drafting and may cause confusion and be the subject of argument as the new sections of the Act are applied by responsible authorities and the Tribunal.

Recent cases

The way in which the Objectors Bill has been applied by the Tribunal over the last six months is demonstrated in the following cases.

Backman & Company Pty Ltd v Boroondara City Council [2015] VCAT 1836

In Backman, 450 objections were lodged to the responsible authority and over 80 Statements of Grounds lodged to the Tribunal against a proposed three-storey residential development. The Tribunal considered the operation of the Objectors Bill and found that the number of objectors alone was not enough to demonstrate a significant social effect, but rather that a significant social effect must be demonstrated by evidence.

In particular, the Tribunal discussed that the alleged social effect must have a direct connection to the permit triggers. Therefore, if a permit is required only for the construction or carrying out of works and is not required for use of the land, any alleged social effects relating to the use of the land will be irrelevant in the Tribunal’s decision-making processes.

This reflects the second reading speech for the Objectors Bill, during which Minister Wynne indicated that the intention of the Bill was to ensure that objections are a genuine reflection of an anticipated significant social effect and are supported by evidence.

In Vukadinovic, 875 objections were made to three permit applications for broiler farms. The Tribunal found that a large number of objectors in itself will not establish that a particular proposal will have a significant social effect, although it may be a relevant fact (together with other facts) that indicates that a proposal may have a significant social effect on the community. This view is consistent with the Supreme Court judgment in Stonnington City Council v Lend Lease (Armadale) Pty Ltd [2013] VSC 505. The Tribunal commented that the amendments made by the Objectors Bill appear to be a precaution reminding the Tribunal to consider and not overlook a significant social impact and that they are not interpreted to mean that something is a significant social effect merely because many people claim it to be so.

Conclusion

Whilst the wording of the Objectors Bill creates ambiguity, the Tribunal has read down the new provisions of the Act in the recent cases of Backman and Vukadinovic. These cases suggest that the relevance and merit of objections will remain the main consideration in having regard to objections when assessing significant social effects, rather than objector numbers. This is a pragmatic approach which will minimise planning permit applications becoming unnecessarily protracted and refused due to unmeritorious objections.

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